By Attorneys Robert Reeves and Jeremiah Johnson
Over three years ago Reeves & Associates published an article, regarding “Relief For Aged-Out Children Under Child Status Protection Act (“CSPA”),” discussing the scenario where children who “aged-out” retain their parent’s original priority date under Section 203(h)(3) of the Immigration and Nationality Act (“INA”). Since then, Reeves & Associates has been a leader in fighting for CSPA relief for families with aged-out children. Reeves & Associates has represented more than 100 aged-out children many of whom have been approved for permanent residency. Some applications, however, were denied and other applications were left unanswered by the United States Citizenship and Immigration Services (“USCIS”). Because of inconsistent decisions, Reeves & Associates filed a class action lawsuit on behalf of immigrant families, Costello v. Chertoff, in U.S. District Court challenging the USCIS’ failure to comply with certain provisions of the CSPA. Unfortunately, the Board of Immigration Appeals published a precedent decision, Matter of Wang, limiting automatic conversion under § 203(h)(3) only to derivative children of second preference primary beneficiaries. Although this interpretation fails to take into account the plain language of § 203(h)(3), the District Court denied Reeves & Associates’ motion for summary judgment and granted USCIS’s motion for summary judgment finding that the language of § 203(h)(3) was ambiguous and as such, the Board’s decision in Matter of Wang was owed deference. While this is a set back for the thousands of families who have suffered as a result of the USCIS’s failure to apply the law as written, Reeves & Associates will continue to fight for aged out children and their families and is confident that the Ninth Circuit Court of Appeals will overturn the District Court’s decision and hold USCIS’s interpretation of the CSPA is arbitrary, capricious and manifestly contrary to the law.
Congress passed the CSPA on August 6, 2002 to protect the children of immigrants who turn twenty-one years old while their parents waited for immigrant visas. Under the better-known section of CSPA, the child may use a complex formula that allows for the amount of time an immigrant visa was processing to be subtracted from the child’s age on the date the green card application was filed. However, many children still aged-out despite the formula and families suffered as a result of separation from loved ones.
Although under INA § 203(a)(2)(B), a permanent resident parent has the right to petition his unmarried adult children, the child’s priority date would then be the date the immigrant visa petition was filed. Because of the limited number of visas and the backlog, the child would have to give up his or her place in line and wait several more years to be reunited with his or her family. Fortunately, Congress provided relief for these families. Under the Section 3 of the CSPA, codified at INA § 203(h)(3), children who age-out – even after applying the formula – can convert to the appropriate immigrant category and retain the priority date under which the parent immigrated. Specifically, INA § 203(h)(3) states that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date upon receipt of the original petition.” So under this provision of the law, a child who aged-out retains the original priority date and in most cases can reunite with their family. Moreover, if the child who aged-out is in the United States, he or she should be able to apply for a green card if otherwise eligible. In short, an aged-out child, who is a derivative beneficiary of the visa petition of his parent, will be able to keep his or her place in the immigration line and reunite with their family much faster by utilizing their parent’s earlier priority date.
The Board’s decision limiting the applicability of INA § 203(h)(3) is flawed and the District Court’s decision to give Matter of Wang deference was in error. Perhaps what is most shocking is that before the Court, USCIS took the position that derivative children waiting with their parents were never “in line” for a visa and as such are not entitled to the relief provided for by Congress. Not only is this argument manifestly contrary to the law, it requires an unreasonable interpretation of what it means to wait 15 years or more for the opportunity to immigrate to the United States as a family.
The lawsuit now goes to the Ninth Circuit Court of Appeals for review. Reeves & Associates remains committed to protecting the rights of their clients and fighting for all immigrants who have been harmed by the Government’s failure to follow the law.